E-ZPass records make way into criminal and civil trials

They show where a vehicle traveled at a specific time

By Madison Park, Baltimore Sun | September 2, 2007

BALTIMORE - A woman accused of killing her husband was convicted after New Jersey prosecutors reconstructed her movements. Investigators pieced together the driving route of a missing Baltimore federal prosecutor who later turned up dead. Prosecutors in a New York City murder trial discredited a suspect's alibi.

A key factor in these and other cases: E-ZPass, the electronic toll payment system that records when and where the vehicles in question traveled.

As millions of drivers hit the road this Labor Day weekend, a growing number will be relying on their E-ZPass devices to speed their way through tollbooths.

But as the popularity of the windshield-mounted devices has grown among motorists, so has their usefulness to investigators.

Records of electronic toll payments are popping up in courtrooms as evidence in criminal and civil cases.

Like data from ATM transactions and cellphone usage, the toll records can be used as an investigation tool, showing where someone - or at least someone's car - was or wasn't at a precise time.

Eugene O'Donnell, a lecturer at John Jay College of Criminal Justice in New York cited a New York Police Department probe that relied on E-ZPass records of employees to reveal that several officers who had put in for overtime had gone home instead.

"If a guy tells you a story that's not true, you can deconstruct a story by the records," O'Donnell said.

O'Donnell warned that the E-ZPass record is no "smoking gun."

"Some people think it's an 'A-ha' mechanism that makes a case sink or swim," he said. "It could be useful in a roundabout circumstance. It can help to accredit or discredit."

It's increasingly easy to track down where people have been from using credit card transactions, footage from surveillance cameras, and E-ZPass records, O'Donnell said.

Maryland, where drivers ring up about 56 million E-ZPass transactions a year, is one of seven states in which tolling records can be subpoenaed in criminal and civil cases.

"It's not something we discount. We use the E-ZPass to help with investigations to find out where a person has been," said Corporal Michael Hill, spokesman for the Baltimore County Police Department. "The only thing that E-ZPass tracks is the vehicle, not the person."

Sergeant Christina Presberry, Harford County Sheriff's Office spokeswoman, said E-ZPass information "is an investigative tool that we do use, probably not often." She wouldn't comment on the frequency of use.

Transportation officials release E-ZPass records only when a subpoena is presented. At the Maryland Transportation Authority, subpoenas are reviewed on a case-by-case basis by operations staff and legal counsel, said Kelly Melhem, the spokeswoman for MdTA. Although the authority does not keep track of how many subpoenas have been received, most of them are for criminal investigations, Melhem said.

The electronic records of the transaction are kept for 18 months if the user has no violations.

E-ZPass became a tantalizing clue for investigators in the unsolved death of federal prosecutor Jonathan P. Luna.

Authorities recovered a Pennsylvania Turnpike toll ticket that was turned in at rural Ephrata, Pa., and they believe it was used by whoever was driving his car on the night in 2004 he drowned in a stream.

Luna, an assistant US attorney based in Baltimore, had an E-ZPass tag, which meant the car could have entered the highway without stopping to take a toll ticket, something that a driver unfamiliar with the vehicle might not have known.

Investigators established a timeline of Luna's activities the night he died using records from credit cards, an ATM, and the tolls. Michelle Crnkovich, FBI spokeswoman for the Baltimore office, said the E-ZPass information was a "resource."